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The EU and European Democracy—Social Democracy or Democracy with a Social Dimension?

Published online by Cambridge University Press:  20 July 2015

Richard Burchill
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Extract

In recent years democracy has become a prominent topic in the development of international law and relations. The trend in the international system in pursuit of international legal requirements of democracy is perhaps most evident in Europe with significant support coming from the regional organisations of Europe. The EU is part of this development having established treaty-based provisions making democracy a requirement for current and potential members. At the same time the economic integration project of the EU places a range of demands upon states which directly impact the type of democracy they may be striving for. Significantly, the EU’s requirements will influence the extent to which social democratic practices may be pursued. Examining the type of democracy the EU is promoting among its current and potential members will be useful for understanding the meaning and content of the type of democracy international law is working towards and also for the future of social democratic practices in Europe.

Type
Research Article
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Canadian Journal of Law & Jurisprudence , Volume 17 , Issue 1 , January 2004 , pp. 185 - 207
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2004

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References

The author would like to thank Akbar Rasulov, Jeff Kenner, Allan Rosas and Tammy Hervey for comments on earlier drafts.

1. It is important to note that the developments in favour of democracy occurred throughout the world and were not limited to Europe, see Huntington, Samuel, The Third Wave: Democratization in the Late Twentieth Century (Norman: University of Oklahoma Press, 1991)Google Scholar; Fox, Gregory & Roth, Brad, “Introduction: The Spread of Liberal Democracy and Its Implications for International Law” in Fox, Gregory & Roth, Brad, eds., Democratic Governance and International Law (Cambridge: Cambridge University Press, 2000) at 1–22 CrossRefGoogle Scholar.

2. The term European Union will be used throughout as a ‘generic’ term encompassing the various institutions and their constituent treaties, see Rosas, Alan, “The European Union and International Dispute Settlement” in Boisson de Chazournes, Laurence, Romano, Cesare & Mackenzie, Ruth, eds., International Organizations and International Dispute Settlement: Trends and Prospects (Ardsley, NY: Transnational Publishers, 2002) at 49 Google Scholar; von Bogdandy, Armin, “Organizational Proliferation and Centralization under the Treaty on European Union” in Blokker, Niels & Schermers, Henry, eds., Proliferation of International Organizations: Legal Issues (The Hague: Kluwer Law International, 2000) at 177–206 Google Scholar. The Draft Treaty establishing a Constitution for Europe has adopted the EU as a single term encompassing the entirety of the organisation, available at http://european-convention.eu.int.

3. Article 6(1) Treaty on European Union, [2002] O.J.C. 325/24 [TEU] sets the requirement of democracy for current members and Article 49 EC states that any European state that respects Article 6(1) TEU may become a member, discussed below.

4. Council of Europe, Statute of the Council of Europe (5 May 1949), ETS No. 1. (entered into force 3 August 1949). Further information about the COE can be found at www.coe.int.

5. Charter of Paris for a New Europe, (adopted 21 November 1991), online: Organization for Security and Co-operation in Europe http://www.osce.org/docs/english/1990-1999/summits/paris90e.htm. Full information about the OSCE can be found at online: Organization for Security and Co-operation in Europe www.osce.org.

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32. The original European Social Charter (18 October 1961), ETS No. 035 (entered into force 26 February 1965) has been supplemented by a Revised European Social Charter (3 May 1996), ETS No. 163 (entered into force 1 July 1999). The Revised ESC did not replace the original ESC and both treaties remain in force. For further information about the ESC regime, see Harris, David & Darcy, John, The European Social Charter, 2nd ed. (Ardsley, NY: Transnational Publishers, 2001)Google Scholar. ESC will be used throughout in reference to the overall treaty regime.

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44. Abr. Frowein, Jochen, “The European Community and the Requirement of a Republican Form of Government” (1984) 82 Mich. L. Rev. 1311 at 1312 Google Scholar.

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46. Weiler, J.H.H., The Constitution of Europe: ‘Do the New Clothes Have an Emperor?‘ and Other Essays on European Integration (Cambridge: Cambridge University Press, 1999) at 310–11 Google Scholar.

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52. EC Bulletin 3-1978 at 5.

53. An attempt by the European Parliament to have a democracy requirement for membership added to the treaties failed to materialise, Verhoeven, supra note 42 at 219.

54. See Roquette Freres v. Council, C-138/79, [1980] E.C.R. I-3333 at para. 33, UEAPME v. Council, T-135/96, [1998] E.C.R. II-2335 at paras. 88-89. For a discussion of the UEAPME case and its impact upon the understanding of democracy within the EU, see Bernard, Nick, “Legitimising EU Law: Is the Social Dialogue the Way forward?” in Shaw, Jo, ed., Social Law and Policy in an Evolving European Union (Oxford: Hart Publishing, 2000) at 279 Google Scholar. Also see Verhoeven who believes the ECJ has primarily confined its view of democracy to the minimalist liberal approach, supra note 42 at 226.

55. The unanimity requirement makes it likely this procedure won’t be used. Verhoeven, supra note 42 at 222.

56. Article 7 (3) TEU.

57. In the COE, the Committee of Ministers acts as the executive and in 1994 declared that it has the power to ensure member states conform to their commitments of democracy, see Declaration on Compliance with Commitments Accepted by Member States of the Council of Europe 95th Session of the Committee of Ministers (10 November 1994), reprinted in (1995) 2 Int’l Hum. Rts. Reports 250; Procedure for Implementing the Declaration of 10 November 1994 on Compliance with Commitments Accepted by Member States of the Council of Europe (20 April 1995), reprinted in (1997) 4 Int’l Hum. Rts. Reports 244. At the same time the Parliamentary Assembly of the COE conducts its own monitoring activities on compliance with commitments and appears to be resentful of the Committee’s procedures, see the questions of the Parliamentary Assembly and responses from the Committee of Ministers, reprinted in (1997) 4 Int’l Hum. Rts. Reports at 246-55.

58. Burchill, Richard, “The Promotion and Protection of Democracy by Regional Organizations in Europe: The Case of Austria” (2001) 7 Eur. Pub. L. 79 at 84-85 Google Scholar.

59. It is worth noting that the COE and OSCE did not take any action against Austria, Ibid. 90-97.

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61. See Barry Fitzpatrick, “Converse Pyramids and the EU Social Constitution” in Shaw, supra note 54 at 305.

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67. Hervey, supra note 63 at 3.

68. Ibid. at 1.

69. Ibid. at 23; Lenaerts & Foubert, supra note 50 at 268; Szyszczak, Erika, “Social Policy in the Post-Nice Era” in Arnull, Anthony & Wincott, Daniel, eds., Accountability and Legitimacy in the European Union (Oxford: Oxford University Press, 2002) at 330–31 Google Scholar.

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72. Ibid. at 21.

73. Articles 146-148 EC (creating the European Social Fund and setting out its administration).

74. Articles 149-150 EC (contributing to the development of quality education, Article 149; implementing a vocational training policy, Article 150).

75. Article 152 EC (calling for EU action to complement national policies in public health).

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82. Ibid. at para. 24.

83. COM (2000) 379 final.

84. EC, Scoreboard on Implementing the Social Policy Agenda, COM (2003) 57 final at 26. See also Lothar Funk, “Protecting Fundamental Rights and Social Rights: An Economic Analysis” in Arnull & Wincott, supra note 69 at 308.

85. EC, European Social Agenda, [2001] O.J. C. 157/4.

86. Ibid. at para. 23.

87. See Hervey, supra note 63 at 3-4, 6; Jo Shaw, “Introduction” in Shaw, supra note 54 at 4. But see Hepple, Bob, “Social Values and European Law” (1995) 48:2 Current L. Prob. 39 at 45 Google Scholar who warns that linking social policy to the market may undermine developments in social justice at the national level.

88. Bernard in Shaw, supra note 54 at 292.

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92. Philip Alston & J.H.H. Weiler, “An ‘Ever Closer Union’ in Need of a Human Rights Policy: The European Union and Human Rights” in Alston, supra note 49 at 31.

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103. For example, Article 34 (2) reads ‘everyone residing and moving legally within the EU is entitled to social security benefits and social advantages ….’ Also Gijzen, Marianne, “The Charter: A Milestone for Social Protection in Europe?” (2001) 8 Maastricht J. Eur. & Comp. L. 33 at 38 Google Scholar.

104. There is less protection given to worker’s rights under the Charter than already exist in the ESC, ibid. at 40-41.

105. Article 34 (3) of the Charter.

106. Gijzen notes that the wording relation to the elderly and disabled is significant for it does not create positive obligations, supra note 103 at 40.

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108. See Fabre, supra note 24.

109. In the prior enlargements there was no specific requirement for democracy, Sadurski, Wojciech, “Charter and Enlargement” (2002) 8 Eur. L. J. 340 at 343 Google Scholar. However there did exist the assumption that states such as Portugal and Spain would not be able to join until they became democracies, see George, Stephen & Bache, Ian, Politics in the European Union (Oxford: Oxford University Press, 2001) at 203 Google Scholar. Hillion, Christophe, “The Enlargement of the European Union: A Legal Analysis” in Arnull, & Wincott, , supra note 69 at 408–12 Google Scholar explains that the accession criteria this time around has been applied more strictly and in a more demanding way as the applicant countries have had to adopt fully a range of requirements before being admitted, even areas which are constantly transforming.

110. Article 49 TEU.

111. EC, Towards the Enlarged Union: Strategy Paper and Report of the European Commission on the Progress Towards Accession by Each of the Candidate Countries (SEC (2002) 1400-1412), COM (2002) 700 at 13-14.

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113. EC, Agenda 2000: The Challenge of Enlargement, COM/97/2000 final at 40. See also the European Commission’s “Opinion on Slovakia’s Application for Membership of the EU” Bulletin of the EU Supplement 9/97 at 20.

114. Sadurski explains that the early co-operation agreements between the EU and the applicant states ‘had much more to do with the promotion of free-market ideals than of human rights and constitutionalism’ supra note 109 at 343. The demands of democracy and rights placed on new members did not include a strong place for socio-economic rights, Brandtner, Barbara & Rosas, Allan, “Human Rights and the External Relations of the European Community: An Analysis of Doctrine and Practice” (1998) Eur. J. Int’l Law 468 at 486–87 Google Scholar.

115. For both applicants and current members states economic considerations which are at the heart of the integration project, such as those required by the Euro, will have a substantive impact on the social provisions.

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118. Arnull, & Wincott, , supra note 69 at 257–58 Google Scholar.

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120. Article 3, Draft Text.

121. See statement by Leurecht, in The Social Charter for the 21st Century, supra note 34 at 20 Google Scholar.

122. Even though Wheatley ex Presses the view that democracy is more than elections which is commonly used to mean political rights, the content of the European obligation to democracy he puts forth contains—free and fair elections, association in political parties, freedom of political ex Pression and the right to individual political participation, supra note 6 at 236-46. It is only the final requirement that may provide the possibility of democracy outside of the political realm but by presenting in terms of political participation it will be seen in narrow terms.

123. Kok, Wim, “Enlarging the European Union: Achievements and Challenges” (26 March 2003) at 11 Google Scholar, online: EUROPA: The European Union Online http://www.europa.eu.int/comm/enlarge-ment/communication/index.htm#kok_reportKok at 2.

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